IQBAL AHMAD SHAH Versus AZAD GOVERNMENT
Above captioned Constitutional petitions raise common questions of facts and law hence are heard together and decided through the proposed judgment.
2. It is alleged by the petitioners that they are appointed as primary teachers on different dates through different orders in Education Department from 1995 to January 30, 1998. Petitions Nos. 220 and 251 relate to appointment of teachers in District Bagh while Petitions Nos.232 and 629 relate to appointments in District Muzaffarabad Azad Kashmir.
3. The case of the petitioners is that the rules regulating method and qualification for appointment as primary teachers were enforced on 24‑9‑1989 through which minimum qualification for the post of primary teacher was fixed as Matric with PTC or equivalent. These rules, according the petitioners, were amended through Notification dated 15‑7‑1990 Whereby it was provided that untrained persons will also be eligible for appointment if trained are not available. The rules were repromulgated by ;mended on 18‑5‑1994 wherein minimum qualification was provided as Matric 2nd Division with PTC or equivalent qualification. The Rules of 1994 were kept in abeyance through Government Notification dated 14‑6‑1994 and all appointments including those of the petitioners were made during the period when the rules remained in abeyance. This abeyance notification was withdrawn on 1‑1‑1998, whereby Rules of 1994 were revived. Another notification was issued by the Government on 22‑12‑1999 whereby lifting of abeyance of the rules was given effect from 1‑2‑1998 instead of 1‑1‑1998. It is stated that in view of above‑referred notifications of the Government, requirement of Matric 2nd Division and PTC trained was not in force, hence appointments of non‑P.T.Cs. made during the period do not suffer from legal infirmity. The petitioners apprehending their removal from service have filed the above‑referred petitions for a writ of prohibition against respondents claiming that as they are appointed. during the period when the rules requiring minimum qualification of primary teacher as matric, or matric Second Division, with PTC were kept in abeyance, their appointments are, therefore, in accordance with Rules, and they cannot be removed from service by retrospective operation of any rule or notification. A directive of the Government dated November 4, 2000' issued under No.200 is also called in question in Petition No.629 of 2000.
4. The respondents, in their written statement have stated that the appointments of the petitioners have been made contrary to Rules, against g merit and without advertising the posts, hence these are without lawful authority and not entitled to be protected.
5. The learned Advocates appearing for the petitioners contended that the Rules regulating method of appointment and qualification as primary teachers were kept in abeyance through notification of the Government referred above. According to the learned Advocates, effect of keeping in abeyance the rules through Government notification is that the requirement of trained teachers with second division matric was not the rule' and the appointment of untrained or non‑second division: teacher is not contrary to Rules. It is further contended that a Notification was issued on 1‑7‑1999 by the Government specifying different categories of the appointments to be cancelled under the guise of a judgment of Supreme Court in the case of Nisar Akhter v. Secretary Education. According to the learned Advocates this notification of the Government is without lawful authority as the condition of Matric II Division with PTC was waived or kept in abeyance.
6. Additional Advocate‑General, appearing for the respondents contended that under the Government Notification dated 13‑5‑2000, the Rules of 1994 (dated 18‑5‑1994) are restored from the date of their abeyance and all notifications issued from time to time in that behalf are recalled. According to him, after this notification the appointments of the teachers, which are contrary to Rules, have to be recalled. According to him, these notifications have been declared by the Service Tribunal to be of no legal effect in the case of Nisar Akhter v. Secretary Education and others and the order is upheld by the Supreme Court.
7. After hearing the learned advocates for the parties, I have gone through record, notifications placed on the files of the Court and the Rules regulating induction in Educational Department. Most of the notifications to be referred in this judgment find place on file namely Iqbal Ahmad Shah and 85 others v. Azad Government.
8. The exact point for determination of the Court in these petitions is as to whether the appointment of non trained petitioners as teachers in view of the Rules being kept in abeyance is in accordance with Rules, and if not, whether they can be removed from service?
9. The Rules regulating appointment of primary teachers which are relevant for the purpose of these petitions were first enforced on September 24, 1989 called as Azad Jammu and Kashmir Directorate of School Rules, 1989 (Rules of 1989). Minimum qualification under Item No. 19 of the Rules for the post of primary teacher was provided as "Matric with PTC or equivalent. These Rules were amended through Notification dated July 15, 1990 providing that untrained will be eligible if trained are not available. The Rules of 1989 were substantially amended on 18‑5‑1994 (Rules of 1994) substituting Item No. 19 of Rules of 1989 with Item No. 15 providing minimum qualification for the post of Primary Teacher as Matric Iind Division with PTC or equivalent". The Rules of 1994, therefore, superseded the Rules of 1989 alongwith the notification dated 15‑2‑1990 to the extent of qualification. Thus the Rules in field at the relevant time were of 1994. The Government issued a Notification on 14‑6‑1994 keeping in abeyance the Rules of 1994 till further orders. Another Notification was issued on 1st of January, 1998 lifting the abeyance of the Rules made through notification dated 14‑6‑1994. This ‑notification was again amended on December 22, 1999 stating that lifting of the abeyance of the Rules shall take effect from 1st of February, 1998 instead of January 1, 1998. The petitioners, from perusal of the record appear to have been appointed during the period when the Rules of 1994 were kept in abeyance.
10. It appears from perusal of the record that a notification was issued on May 13, 2000 appointing different Committees to examine illegal and irregular appointments made in the Educational Department in view of large scale protest against appointments. This notification was amended through another Notification dated September 6, 2000 providing examining the appointments made during 18‑5‑1994 to 1‑2‑1998 under Rules of 1989 and from 2‑2‑1998 till the date of notification under Rules of 1994. It also appears from perusal of the record that a notification was issued by the Government on May 13, 2000 directing that the Rules dated 18‑5‑1994 are restored with effect from their abeyance and all notifications issued keeping the Rules in abeyance are cancelled.
11. A directive was issued under No. (13)7 20 dated 4‑11‑2000, that those untrained teachers who are appointed contrary to Rules be removed and the posts be filled according to Rules. Another notification was issued by the Government on July 14, 2001 stating that on the basis of the report of Committee of inquiry appointed through notification dated May 13, 2000, eight hundred fifty six teachers who have been appointed contrary to Rules dated 18‑5‑1994 untrained are removed from service and consequently the appointments against the posts, vacated by them, shall be made from the merit list prepared by Selection Committees for the posts and ban. imposed by the Government on appointments is also relaxed through this notification.
12. Above background of the case reveals that the appointments of the petitioners and many others were made during the period when the Rules were kept in ILTIVA . The Notification of the Government dated 14‑6‑1994, under which the rules were kept in ILTIVA may be reproduced here for true perception of the problem:‑‑
13. The word ILTIVA, according to Urdu Dictionary URDU LUGHAT TARAQI compiled by Urdu Board Karachi means;.
According to FEROL‑ULLUGHAT Urdu Dictionary, the word ILTIVA means;
In the Dictionary LUGHAT‑E‑KISHVARI, the word ILTIVA means;
And in the Dictionary ILMI URDU LUGHAT the word ILTIVA is defined as;
14. The word ILTIVA as translated in Urdu‑English Dictionary by Feroz Sons Revised Edition, means "postponement; deferred; delay; holding in abeyance; adjournment".
15. In Urdu‑English Dictionary by Dunkin Forbes published by Alkamran Publishers Urdu Bazar Lahore 1986, the word ILTIVA is translated as "hanging back, procrastinating, deferring".
16. The words 'abeyance', 'defer or deferring' appears to be the closest I equal to the word ILTIVA. The 'abeyance' is defined in Black's Law Dictionary 5th Edition as "condition of being undetermined or in a state of suspension or inactivity". In the Oxford English Dictionary Vol.I, the word abeyance is defined as "expectation or contemplation of law; position of waiting for or being without claimant or owner and a state of suspension, temporary non‑existence or inactivity; dormant or lated condition liable to be revived at any time." "In the New Lexicon Webstor Dictionary Vol.I the word abeyance is defined as "temporary suspension, usually of custom rule or law". In the Aiyer's Manual of Law Term and Phrases 7th Edition the word is defined as "legal term used when there is uncertainty as to whom the rights belong. Rights of action are in abeyance till the actions are begun or abandoned. Typical cases are claims to peerages, ownership of manorial rights and right of presentations to livings. An estate is said to be in abeyance when there is no person in esse in whom it can vest abide". In the Shorter Oxford Dictionary Vo1.I, the word is defined as "expected or contemplation of law; posting of being without owner; a state of suspension; dormant condition", in the Aiyer's Judicial Dictionary 10th Edition, the word is given meaning as follows:‑‑
"Abeyance. Legal term used when there is uncertainty as to whom the rights belong. Rights of action are in abeyance till the actions are begun or abandoned. Typical cases are claims to peerages, ownership manorial rights. An estate is said to be in abeyance when there is no person in case in whom it can vest and abide.
Hindu law does not recognize an estate in abeyance. An estate in abeyance is called an estate in germis legis (in the bosom of the law)
The word 'abeyance' is equivalent to suspension which means 'temporarily withholding', temporary forced withdrawal. The words suspend and 'suspension' imply that the suspension is for a temporary period. [Anuradha v. Santosh Nath AIR 1976 Delhi 246; 78 Punj LR (Delhi) 53]
Abeyance in relation to a post, means, according to Oxford English Dictionary, "a state of suspension, dormant condition; a position of being without an owner."
17. The word Defer or Deferring in 'Shorter Oxford Legal Dictionary Vo1.I means, "to carry apart; put off; to put on one side; to put off to some later time; to delay; postpone." The New Lexicon Webster Dictionary Vol. 1, the word defer means; "to. put off taking action". And in Black's Law Dictionary, it means as "Delay put off; postpone to a future time. The term does not have, however, the meaning of abolish".
18. The meaning of the word ' ILTIVA' , as deduced from above, appears that the Rules of 1994 were in a state of suspension or temporary cessation or withdrawal; withheld; inactive or inoperative, but not abolished or having ceased to exist". This leads me to hold that the Rules were not meant to be in force or inaction for the time being; or not complied with. if deemed to be in force by any stretch of imagination, till the period these were revived through notification dated 1st January 1998, which was later on given effect from 2nd of February, 1998 though notification dated December 2, 1998. It means that the appointments during the period were not made according to the prescribed manner.
19. The question as to whether the Rules of 1989 revived or came into force during the period the Rules of 1994 were kept in abeyance or not. A comparative study of Rules of 1989 or 1994 reveal that the Rules of 1989 were not repealed or replaced as a whole. Some of the items of the Rules of 1989 were re‑enacted with modifications which includes the item relating to qualification, directly relevant in these cases.
20. Under section 8 of the General Clauses Act, 1897, the reference to the Rules would mean the re‑enacted items of the Rules, not the rules or any part thereof which has been submitted by the amendment, as there is no mention of revival of items of Rules of 1989 in the abeyance notification. Under section 7 of the General Clauses Act, 1897, when an amending or amended enactments is repealed wholly or partially, the enactment inforce earlier to it does not automatically revive unless it is specifically stated in the amending enactment. The abeyance notification does not state that the Rules of 1989 would revive or hold filed during abeyance, it can therefore, not be said that Rules of 1989 revived during the period. Moreover, the Rules of 1994 were neither repealed, nor cancelled under the abeyance notification. Hence the revival or applicability of earlier rules is out of question as the abeyance of rules is merely suspension or in‑operation of the Rules for the time being, which is not tantamount to repeal or amendment. The Rules of 1994 remained on the statute book but were not acted upon being in a state of abeyance, hence the appointments made during the period did not derive force from any prescribed manner.
21. The position regulating induction in the service of Azad Jammu and Kashmir is settled under Constitution and Law. Under subsection (1) of section 49 of Azad Jammu and Kashmir Interim Constitution Act, 1974, appointments of persons to, and terms and conditions of service of persons in, the service of Azad Jammu and Kashmir, are to be regulated under law'. The law regulating the services is called as Azad Jammu and Kashmir Civil Servants Act, 1976. Under section 4 of this Act, 'appointments to Civil Service of Azad Jammu and Kashmir or a civil post in connection with the affairs of the Government, shall be made in prescribed manner by the Government or by a person authorized by it in that behalf'. The manner for the purpose is regulated by Azad Jammu and Kashmir Civil Servants (Appointment and Conditions) Rules, 1977. Sub‑rule (3) of rule 3, and rules 16 to 20 of Part‑III of the Rules of 1977 which, are relevant for the purpose, are reproduced below:
"3(3). The appointment shall be made from among such persons possessing such qualifications and fulfilling such other conditions as may be prescribed by the Government from time to time."
16. Initial appointment to the posts in Grades‑16 (to 20), except those which under the Azad Jammu and Kashmir Public Service Commission (Functions) Rules, do not fall within the purview of the Commission or which are specified to be filled without reference to the Commission, shall be made on the basis of examination or test conducted by the Commission.
17. Initial appointment to all the posts in Grades‑1 and above except those filled under rule 16, shall be made on the basis of examination or test to be held by the appropriate Committee or the Board, as the case may be, after advertisement of the vacancies in newspapers, or in the manner to be determined by the Government.
18 (1) A candidate for initial appointment to a most pust possess the prescribed educational qualifications and experience and also, except as provided in the rules framed for the purpose if relaxation of age limit, must be within the age limit as laid down for the post;
Provided that experience, where prescribed, would include equivalent experience, to be determined by the Government in a profession or in the service of an Autonomous or Semi‑Autonomous Organization or a Private Organization.
(2) (i) Where requirement is to be made on the basis of a written examination, age shall be reckoned as on the first of January of the year in which the examination is proposed to be held; and:
(ii) in other cases, as on the last date fixed for submission of applications for appointment.
19(1) No person shall be appointed to a post unless he is a State Subject as defined in the Azad Jammu and Kashmir Interim Constitution Act, 1974, provided that this restriction may be relaxed by Government in suitable cases.
(2) No person, who has married a foreign national shall be appointed to a post; provided that this restriction may be relaxed by Government in case of person who has married a citizen of India.
(3) No person shall be appointed to a post unless he makes before the appointing authority an oath in form set out in the Schedule.
(20) Vacancies in various posts shall be filled from persons who are State Subjects in accordance with merit provided that some particular posts may be reserved for persons domiciled in a particular area as may be specified.
22. In view of above mentioned and legal position the appointment to a post in the service of Azad Jammu and Kashmir can be made by a competent Authority in accordance with the Rules regulating the qualification and method of recruitment on the basis of merit evaluated by holding examination or test of candidates who possess prescribed qualification and experience through Appropriate Committee or Board after advertisement of vacancies.
23. Superior Judiciary of Azad Jammu and Kashmir has touched almost every aspect of service law and no iota of doubt is left regarding manner and method of appointment in the service.
24. In the case reported as 1992 SCMR 468 (Syed Sajid v. Chaudhry Latif and others) and (State v. Chaudhry Latif), in which a dispute regarding appointment by promotion to the post of Secretary to the Government in the absence of the rules for the post of a Secretary was under discussion before the Supreme Court, the Hon'ble Court felt pleased to hold that;
The learned counsel for the appellant has contended that the Tribunal has wrongly held that the post of Secretary cannot be filled up unless rules for the purpose of laying down necessary qualifications for that post are framed. The view framed by the Service Tribunal on this point is based on the Rules known as the Azad Jammu and Kashmir Civil Servants (Appointment and Conditions of Service) Rules, 1977. As is clear from the opening paragraph of these Rules, these rules have been framed under rule 23 of the Azad Jammu and Kashmir Civil Servants Act, 1976 which empowers the Government to make such Rules as may appear to be necessary or expedient for carrying out the purpose of that Act. It is provided in section 4 of the Civil Servants Act that appointment to a civil service or a civil post shall be made in the prescribed manner by the Government, or by a person authorized by it in this behalf. The word 'prescribed' is defined in section 2 of the Act to mean 'prescribed by rules'. The scheme of Civil Servants Act shows that if a person is promoted to a post this is termed as an appointment by promotion. In the Azad Jammu and Kashmir Civil Servants (Appointment and Conditions of Service) Rules, 1977 (hereinafter to be referred to as the Rules of 1977), rule 3(1) provides in specific terms that an appointment to a post shall be made by promotion, transfer or initial recruitment. Sub‑rule (2) of this rule reads as follows:‑‑
"(2) Appointments by promotion or transfer shall be made in accordance with Part II and by initial recruitment in accordance with Part II of these Rules."
It may be noted that the word 'shall' has been used in this sub‑rule which signifies that the procedure laid down in Part II of the Rules has to be followed for appointment by promotion. Part II begins with rule 9 and ends with rule 15. Sub‑rule (1) of rule 9 in clear terms lays down that:‑‑
"(1) Appointments by promotion or transfer to posts in various grades shall be made on the recommendations of the appropriate Committee or Board. "
Rule 10 lays down that:
"10: Only such person as possess the qualifications. and meet the conditions laid down for the purpose for promotion or transfer to a post shall be considered by the Selection Authority."
Post is defined in the Rules of 1977 to mean a post in connection with the affairs of the Government. Rule 10 thus clearly provides that no person shall be promoted etc., unless he possesses the qualifications and meets the conditions laid down for that purpose. The rule in fact prohibits the Selection Authority from even considering the case of such a person. This rule is followed by rule 12 which is, to the following effect:
"12. Until the Rules laying down the qualifications and other conditions for the purpose of promotion are made no person shall be promoted to a post in a higher grade on regular basis unless he has passed such test as may be specified by the Appointing Authority to be conducted by the Selection Authority:
Provided that the Government may dispense with the requirement of passing the test in relation to such posts as may be specified.
Rule 12 gives a temporary relaxation that till the framing of the rules laying down the qualifications and other conditions postulated by rule 10 promotion of a civil servant may be ordered but only as a result of a test which may be specified by the Appointing Authority. The Rules of 1977 are in the nature of fundamental rules which are applicable to all civil servants as is clear from sub‑rule (3) of rule 1 and whenever a post is to be filled by appointment by promotion, transfer or deputation or an ad hoc appointment has to be made these Rules have been made applicable. These Rules eliminate to a great extent arbitrary exercise of powers by the concerned authority in the matter of appointment and promotion of civil servants. The wording in which the Rules referred to above have been couched show, in unmistakable words that these Rules are mandatory. Therefore, the conclusion is that the post of Secretary cannot be legally filled up whether by promotion or otherwise unless there exist rules conforming to the requirement of rule 10 mentioned above. We, therefore, uphold the view of the Service Tribunal in this aspect'. "
(Underlining is mine)
25. Though appointment by promotion is after induction in service but the procedure and standard laid down for appointment by promotion is also dependant upon prescribed qualification and condition. 'This standard is equally applicable to initial appointments, rather more strength adherence to the rules is required for initial appointment as against appointment by promotion.
26. In 5 consolidated appeals reported as 1994 CLC 2339, first of which is (Azad Jammu and Kashmir Government v. Muhammad Younus Tahir and others) where the dispute before the Supreme Court was with respect to an Act called as Azad Jammu and Kashmir Civil Servants (Regulation of Adhoc Appointments) Act, 1992, whereunder person holding posts on adhoc basis as well as the persons holding discretionary posts were treated to have been appointed regularly without reference to Public Service Commission. The Act was struck down by the High Court and on appeal, after discussing the Constitutional and legal position, the Supreme Court of Azad Jammu and Kashmir felt pleased to observe as follows:
"In accordance with the scheme laid down by sections 48 and 49 of the Interim Constitution Act and the Public Service Commission Act and the Rules made under them, if a citizen wants to enter the civil service of Azad Jammu and Kashmir in Grade‑16 or above has to pass through the following procedure. Firstly the applications are called by the Public Service Commission for which certain conditions are laid down which must be fulfilled by the candidates. They relate to qualification, age etc. After receiving the applications the Public Service Commission holds written and oral tests and on the basis of merit recommendations are formulated. For every post there are hundreds of applicants although they are less in posts of specialized nature. It means that a person stands a remote chance of selection in an open competition and only those are selected who on account of their qualifications, brilliance and hard-work prove themselves to be the best amongst the contestants. This is the plain requirement of the laws which apply to all state subjects but the Regularization Act has given a special benefit to those who are ad hoc appointees. Jobs have been bestowed to them by operation of law by depriving people like Javed Iqbal Khawaja who is unemployed and had applied to the Public Service Commission and wanted to compete for a job. His right to compete is recognized by the existing laws but has been taken away."
27. In the case reported as 1999 PLC (C.S.) 1248 (Rasheed Hussain v. Gul Afsar and 3 others) discussing the essence of the rules it is held as under:
"It is mandatory requirement of rule 17 of the Azad Jammu and Kashmir Civil Servants (Terms and Conditions of Service) Rules, 1977 that all posts in grades one and above have to be advertised in the newspapers before making appointments. Since the post was not advertised, the appointment of Gul Afsar was illegal.
(9) It is well‑settled principle of law that an illegal appointment cannot be restored in exercise of writ jurisdiction because one who comes to the Court to seek equity must come with clean hands In a number of cases this Court declined to restore to office persons who were wrongly removed from service but their own appointments were illegal. (Underlining is mine). The recent judgment on this point was delivered in Civil Appeal No.36 of 1999 titled Raja Abdul Rezzaq v. Dil Khurram Abbasi and others decided on 7‑4‑1999. We may reproduce the relevant portion below:‑
'Consequently, we have reached the conclusion that appointments of the appellant as well as that of the respondent were made, without the recommendations of the Selection Committee and without complying the other requirements of the rules on the subject. Thus, we are of the opinion that the judgment of the High Court, so far as the same pertains to the restoration of the service of the respondents is concerned, that is not sustainable. Therefore, the appeal is partly accepted and it is directed that the vacancy in question contested by the appellant and the respondent, Dil Khuram, would be deemed vacant and shall be filled in afresh by the concerned authority after complying with the requirements of the relevant rules".
28. In the case reported as PLJ 2000 SC 16 (Secretary for the Prime Minister Secretariat v. Muhammad Aslant and others), it is held as follows;
"In our view, therefore, the condition of advertising a post contained in rule 17 above being of fundamental importance, must be held to be mandatory in nature with the result that if a post has not been advertised the appointment made against the post, even if based on the recommendation of a Selection Board, shall be void. In the light of the above enunciation of law it is our view that the appointment order of the respondents did not create any right in them. "
"9. Equally important aspect of the case has been ignored by the learned Judge in the High Court that writ jurisdiction cannot be exercised to protect ill‑gotten gain. This is a settled principle of law which has been consistently followed by this Court. Still if an authority is needed, then we may refer to Bashir Ahmed Khan v. Custodian and another (1992 SCR 149) and Ch. Muhammad Fayyaz's case referred above." (The underlining is mine).
29. In this case services of Telephone Operators were terminated and the order was set aside by the High Court on the ground that the order is passed without show‑cause notice while Hon'ble Supreme Court observed as above in view of initial induction in service being illegal.
30. Similarly in the case reported as 2001 PLC (C.S.) 50 (Manzoor Ahmed v. Muhammad Sabir and 2 others), essence and effect of the above referred rules is discussed as follows;
"The law on initial recruitment to posts carrying B‑1 to B‑15 is contained in Chapter III of the Azad Jammu and Kashmir Civil Servants (Appointment and Conditions of Service) Rules, 1977. In short the requirements are that when it is intended to fill in a vacant post the vacancy has to be advertised in the newspapers and then appointments have to be made on the basis of examination or test to be held by the appropriate Committee or the Board (rule 17). It is on record that the post of Assistant Warden Fisheries was not advertised. This fact was also impliedly admitted by respondent Muhammad Sabir when he appeared as a witness before the Service Tribunal and stated that he did not know whether the post of Assistant Warden Fisheries was advertised 'or not. This stands settled in along chain of pronouncements of this' Court that advertising a post is a mandatory requirement and if it is not complied with any proceedings taken by the Selection Board are void. The procedure laid down in Chapter III of the Azad Jammu and Kashmir Civil Servants (Appointments and Conditions of Service) Rules, 1977 ensures that people will be appointed to Government Service on the basis of merit and open competition. The legal position, which we reiterate with emphasis, is coram non judice. As held in Muhammad Fayyaz v. Arshad Gilani (1999 PC 567), selection is the concept of choice between more than one candidate. Therefore, the proceedings taken by Selection Board for confirming the respondent were flagrant abuse of power and cannot be accepted by a Court granting relief to the respondent on the basis of this sham transaction."
31. Juxta‑position reading of principle of law laid down in the above referred authorities is that no appointment can be made unless rules are made for the post and its requirements are fulfilled, if any appointment is made contrary to the rules, it is without lawful authority and no notice is required if such appointment is withdrawn, recalled or cancelled and the Court also cannot grant any relief to retain ill‑gotten gain i.e. appointments.
32. In the case in hand as observed, appointments of the petitioners were made when the rules were suspended/kept in abeyance which means that their appointments were made, when no rules were in operation or in force, and if deemed to be in existence, not acted upon, while. Constitutional and legal position is that no appointment can be made unless rule regulating qualification are prescribed arid the appointment is made strictly in accordance therewith. The appointments of the petitioners if made in the above stated circumstances, is therefore, without lawful authority.
33. Be that as it may, the action of the authority keeping the rules in abeyance without any justifiable cause and then making the appointments without rules, appears as a mala fide exercise so as to shower benefits upon the selected few or favourites and keep away the others, be they qualified according to rules or placed similarly as petitioners. No provision of law authorizes the Government to keep .the regularly framed rules under suspension for making appointments at its discretion and then reviving the rules when the task is achieved. This is simply Sikha Shahi and making mockery of the Constitution, legal system and precedents of the superior judiciary. The Notification dated 14‑6‑1994 keeping the Rules of 1994 in abeyance being without lawful authority was, of no legal effect, and Rules of 1994 legally held the field throughout:
34. The flux of the notifications speaks of irresponsible, irrational and unguided mind of relevant authorities to cover up the mess created by appointments made after keeping in abeyance the rules. Thousands of young-men were appointed as primary teachers who are still holding offices. Some of them are admitted by the respondents to be PTC while hundreds others are not so. It is also not clear from the record as to how many of their were Matric 2nd Division if not PTC and how many of thorn have qualified PTC till date.
35. Perusal of the files reveals that most of the petitioners are F.A. or B.A. and some are. Matric. In Petition No.220 of 2000, the petitioners, Shabnam Pervaiz, Nuzhat, Zaheera Bibi, Safia Javed, Shirren Aslam, Saeeda Sagheer‑un‑Nisa are stated to be F.A. or Matric PTC or C.T. While Ghazala Shabnam and Khudeeja Reaz who were impleaded as party on their application allege themselves to be F.A. with P.T.C. and F.A. and C.T. Similarly in Petition No.232 of 2000, Mumtaz Shaheen, Shazia Maqsood, Sadia Abbas, Farkhanda Yasmeen, Jameela Azeem alleged themselves to be B.A., C.T., F.A. P.T.C., M.A. C.T., FA‑PTC and Matric with PTC respectively, while Rahat Afzal, Raeeit Perveen, Najam‑un‑Nissa have placed their marks sheets of being B.Ed in the Court on 31‑10‑2001. In file 251 of 2000, Ghulam Abbas, Shabeena Karanl, Ejaz Khan, Rafeeza Begum allege themselves to be F.A.‑PTC, F.A‑C.T, and Matric PTC respectively. Perusal of the file No.629 of 2000 reveals that 28 teachers have been appointed on one day i.e. 24‑1‑1998 and their appointment orders refer to different authorities. Some are stated to be appointed on recommendation of Selection Committee and some under the direction of Authority MAJAZ; some are appointed in the absence of regular teacher or in lieu of promotion etc. Raeeit Perveen and Najam‑un‑Nisa have placed their B.Ed. Certificate alongwith application for being arrayed as party.
36. Perusal of appointment orders placed on file of the Court in all the petitions reveals that some of the petitioners are stated in their appointment orders as B.A. or F.A., C.T. or P.T.C. and some are Matric with P.T.C. or C.T. Whether they are so or not, is a question to be inquired into in view of suspicious conduct of appointing authority and the manner of appointment. These questions require detailed inquiry into matter, hence it cannot be said in view of circumstances of the case that which of the petitioner, or petitioners, are entitled to writ of prohibition. If any or some of them are not qualified according to rules, their appointment ipso facto does not confer any right, upon them to retain it and no writ can be issued to perpetuate illegal order or unlawful. However, the petitions at the same time cannot be dismissed for the reason that some of the petitioners have not placed on record substantive proof of their being qualified. Moreover, the petitioners are appointed under the orders issued by the Government Agency, whether competent or not but they are holding office since 1, 1995 or 1998 64, date under the impression of being validly appointed; it would, therefore, be unjust to kick out' the petitioners in an un-ceremonial manner.
37. As the Court has reached to the conclusion in the preceding paras. that the Rules of 1994, remained in force, notwithstanding the abeyance notification and the said notification itself is held to be without lawful authority, consequently the appointments .which are made in contravention of Rules of 1994 are without lawful authority. However, to determine as to which of the candidate or candidates lacked or still lack required qualification till today, shall be examined by Secretary Education who is directed to hold inquiry in each case in the light of directive of the Government dated November 4, 2000 issued under No. 2000 (13)/7 ﮓﻧﺭﻴﻧﺎﻤ/ﻪﻳﻣﺎﻅﺗﻧﺍ/ﺖﺲ ). To meet the ends of justice, it is directed that the candidates who have completed the required qualification till the date of this order, shall not be removed from service and a confirmation order shall be issued to them within one month of this order; the rest of the posts are declared vacant, appointment against which shall be made in accordance with the Rules of 1994 after advertising the same within three months of the order. The period stipulated above shall commence from the date the order is received by the Education Secretary. If any of the candidates qualified in accordance with Rules of 1994 holding office as such till the date of this order feels that he has been arbitrary dealt with by the Secretary Education in not confirming, he can file miscellaneous application before the Court alongwith required testimonials.
38. The writ petitions stand disposed off in the above stated manner. A copy of the order shall be sent to Secretary Education for compliance.
39. The valuable assistance rendered by Mr. Masood Qadir representative of the Education. Department in making, the record and notifications available is appreciated.
H.B.T./31/AJ&K Order accordingly.